1. Challenge in this appeal is to the judgment of a Division
Bench of the Andhra Pradesh High Court upholding the
conviction of the appellant for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the `IPC')
and sentence of imprisonment for life and fine of Rs.1,000/-
with default stipulation as recorded by learned Sessions
Judge, Srikalulam.

2. Background facts as projected by the prosecution to
fasten guilt on the appellant are as follows:

Accused had suspected the fidelity of his wife Polamma
(hereinafter referred to as the `deceased') towards him, for
about one week prior to the offence. On 24.8.2000 at 2.00
p.m. the accused with an intention to kill her, stabbed on the
left side of her abdomen with a knife. On hearing her cries, the
neighbours Damyanthi, Appamma, Shanthi (PW-3) the
daughter of the accused Ankamma and others rushed there
and found the accused holding a knife and on seeing them, he
left the house. Polamma informed them that the accused had
stabbed her. She was immediately shifted to the hospital at
Palakonda. There, the Medical officer gave treatment and the
Sub Inspector of Police recorded her statement and registered
the Crime no.55/2000 under section 307 IPC. Polamma was
shifted to Headquarters Hospital, Srikakulam and there she
died at 6.00 P.M. while undergoing treatment. On information,
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the section of law was altered to 302 IPC. The accused was
arrested on 25.8.2000 at 4.00 P.M. at the RIC bus complex
and in pursuance of his confessional statement, the Inspector
of Police recovered the weapon of offence i.e. the knife. A
charge under Section 302 IPC was framed against the accused
and it was read over and explained to him in Telugu. When he
was questioned under section 228(2) of Code of Criminal
Procedure, 1973 (in short `Cr.P.C.') regarding the said charge,
the accused stated that his wife harassed him in several ways
and that on 24th August at 2.00 P.M. his wife sent away the
children after 4.30 P.M. after providing lunch to them and that
when he was lying on the cot his wife went out and came back
10 or 15 minutes later and tried to stab him and that he
snatched the said knife and stabbed her and that he had
rushed to the police station and informed the same to the
police and the police did not take it seriously, as he went to
the police station earlier on that day at about 8.00 A.M. and
his wife took him away characterizing him to be mentally
unsound and the police did not take his representation
seriously.

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In order to establish the accusations, prosecution
examined 7 witnesses. PW-1 who is a neighbour stated that
at the time of occurrence she was in her home and on hearing
cries of the deceased, she rushed to the house of the accused
and found doors of the house closed. At that time Santhi (PW-

3) daughter of the accused, Palakonda Appamma (PW-2) and
one Akula Shankari also came there. All of them knocked
the door. Then accused opened the door. They found the
accused with a knife in his hand which was stained with
blood. They found the deceased on the cot lying and holding
her hand on a bleeding injury on the abdomen. When they
asked her about the incident, the deceased told that the
accused was suspecting her character for some days and had
stabbed her after exchanging of hot words between them.
They took her to the hospital in a cycle rickshaw and she was
admitted. The accused was found guilty and convicted as
noted above.

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In appeal, it was stated that the accused had committed
the offence in private defence and therefore he could not be
convicted under Section 302 IPC. In the ultimate it was
submitted that only one blow was given and there was no
intention to kill the deceased. The High Court did not find any
substance in the aforesaid stands and dismissed the appeal.

3. In support of the appeal, Mr. Karpaga Vinayagam,
learned amicus curiae has submitted that even if it is
accepted that the appellant was not exercising the right of
private defence, the conviction under Section 302 is not
proper. It is further submitted that the evidence on record
clearly establishes that there was sudden quarrel between the
accused and the deceased and single blow was given and,
therefore, the conviction under Section 302 is not proper.

4. Learned counsel for the State on the other hand
supported the judgment of the trial Court and the High Court.
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5. In Pappu v. State of M.P. (2006 (7) SCC 391) it was inter-
alia observed as follows:

"14. It cannot be laid down as a rule of
universal application that whenever one blow
is given, Section 302 IPC is ruled out. It would
depend upon the weapon used, the size of it in
some cases, force with which the blow was
given, part of the body it was given and several
such relevant factors."

6. In Ramkishan v. State of Maharashtra (2007 (3) SCC 89)
at para 8 it was observed as follows:

"8. The assault undisputedly was made in
the course of sudden quarrel, without
premeditation and without the accused taking
any undue advantage."

7. The residuary plea relates to the applicability of
Exception 4 of Section 300 IPC.

8. For bringing in its operation it has to be established that
the act was committed without premeditation, in a sudden
fight in the heat of passion upon a sudden quarrel without the
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offender having taken undue advantage and not having acted
in a cruel or unusual manner.

9. The Fourth Exception of Section 300 IPC covers acts
done in a sudden fight. The said exception deals with a case
of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is
founded upon the same principle, for in both there is absence
of premeditation. But, while in the case of Exception 1 there is
total deprivation of self-control, in case of Exception 4, there is
only that heat of passion which clouds men's sober reason
and urges them to deeds which they would not otherwise do.
There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation.
In fact Exception 4 deals with cases in which notwithstanding
that a blow may have been struck, or some provocation given
in the origin of the dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon equal footing. A `sudden
fight' implies mutual provocation and blows on each side. The
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homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be
placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight
suddenly takes place, for which both parties are more or less
to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not
have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the
share of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without the offender's
having taken undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the ingredients
mentioned in it must be found. It is to be noted that the `fight'
occurring in Exception 4 to Section 300 IPC is not defined in
the IPC. It takes two to make a fight. Heat of passion requires
that there must be no time for the passions to cool down and
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in this case, the parties have worked themselves into a fury on
account of the verbal altercation in the beginning. A fight is a
combat between two and more persons whether with or
without weapons. It is not possible to enunciate any general
rule as to what shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each case. For
the application of Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was no premeditation. It
must further be shown that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
expression `undue advantage' as used in the provision means
`unfair advantage'.

10. Where the offender takes undue advantage or has acted
in a cruel or unusual manner, the benefit of Exception 4
cannot be given to him. If the weapon used or the manner of
attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide
whether undue advantage has been taken. In Kikar Singh v.
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State of Rajasthan (AIR 1993 SC 2426) it was held that if the
accused used deadly weapons against the unarmed man and
struck a blow on the head it must be held that using the
blows with the knowledge that they were likely to cause death,
he had taken undue advantage. In the instant case blows on
vital parts of unarmed persons were given with brutality. The
abdomens of two deceased persons were ripped open and
internal organs come out. In view of the aforesaid factual
position, Exception 4 to Section 300 I.P.C. has been rightly
held to be inapplicable.

11. Considering the factual background, in our considered
view the appropriate conviction would be under Section 304
Part I, IPC. Custodial sentence of 10 years would meet the
ends of justice. We record our appreciation for the able
manner in which Mr. Karpaga Vinayagam, learned amicus
curiae assisted the Court.

12. The appeal is allowed to the above extent.
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